Ruling change may be heard

Head of ethics panel would look at request from Judge O'Malley

Filing is possible soon

Cooksey cautions that committee could refuse to `revisit' issue

January 18, 2002|By Allison Klein and Caitlin Francke | Allison Klein and Caitlin Francke,SUN STAFF

The head of a state ethics committee said yesterday that she would consider a request from new Baltimore District Judge Catherine Curran O'Malley to modify an opinion that severely restricts her role because she's married to the mayor and daughter of the state attorney general.

But District Judge Charlotte M. Cooksey said she remembers revising only one opinion in her 17 years on the Judicial Ethics Committee. And Cooksey cautioned that the committee might not take up the matter again.

"If we received a request we would certainly consider that request," she said, adding: "That is not deciding whether or not to revisit the issue."

The opinion says possible appearance of partiality makes it improper for O'Malley to hear cases calling for police witnesses.

O'Malley, who said she was upset by the opinion and wants to testify before the committee, planned to file a request today or Monday for a modification to allow her to hear police witnesses during trials.

According to the opinion, the majority of the committee agreed that the O'Malleys have a "special relationship" with the Police Department because police would protect and have protected the family when they are threatened.

Mayor Martin O'Malley said all judges are given police protection if their lives are threatened, not just his wife.

"You can imagine my chagrin when I read in the newspaper that my wife has a special relationship with 3,000 Baltimore police officers," he said yesterday.

Later, he added that married couples can -- and do -- separate the personal from the professional.

"I have appeared before judges whose husbands are police officers," said Mayor O'Malley, who is a lawyer. "I never for a second would have thought to ask them to recuse themselves. I never thought they couldn't be faithful to their oath because of the occupation of their husband."

Judge O'Malley was previously denied her request to appear before the committee, which she said was a denial of due process. "It's fundamental fairness," she said. "When I heard they were considering this police protection issue, I wanted to make sure they heard from me so they heard the details. I didn't want them under the assumption that every day of the year the police are protecting me."

She has hired a high-powered lawyer, Ralph S. Tyler, a former deputy attorney general who served under J. Joseph Curran Jr., to help her with the ethics matter.

Cooksey said the committee did not hear O'Malley in person because it is "not that type of forum."

"It is not consistent with the purpose and structure of the committee," Cooksey said. "The committee receives requests for opinions and provides them. It is not an investigatory body. There is no hearing process. The information needed is provided by requester in the body of the request."

Neither Cooksey nor the other eight committee members would comment on the opinion, saying deliberations are confidential and the opinion speaks for itself.

Robert M. Bell, chief judge of the Court of Appeals, who appoints the committee, also would not comment on the O'Malley opinion.

"She asked for the opinion, she got the opinion," Bell said. "If she is going to ask for revision, I shouldn't get involved in it one way or the other. I don't want to influence the committee."

Members of the ethics committee were: Ocean City District Judge Richard R. Bloxom, Howard County Juvenile Master Bernard A. Raum, Howard County Circuit Judge Dennis M. Sweeney, Allegany Circuit Judge W. Timothy Finan, Prince George's Circuit Judge Michele D. Hotten, Court of Special Appeals Judge James A. Kenney III, Baltimore County Circuit Clerk Suzanne Mensh and Dr. Howard D. Bronstein.

O'Malley, a former Baltimore County prosecutor who hopes to become a criminal judge, took the bench in August, presiding over civil cases.

She asked the Judicial Ethics Committee for an opinion about possible family conflicts of interest after she was appointed in July, at the strong urging of Judge Keith E. Matthews, the District Court's administrative judge.

Judge Martha F. Rasin, former chief of the District Court, said the opinion was sought to protect O'Malley and the court system from criticism.

"It was important for this high-profile new judge to have guidance on what she could and couldn't hear," Rasin said. "With somebody like that it's just a matter of time before somebody said, `Well, she shouldn't be sitting in this kind of this case.'"

Robert B. Kershaw, president of the Bar Association of Baltimore City, said the opinion goes too far.

"The ethics opinion is more aggressive than it probably ought to be," Kershaw said. "She was certainly correct in seeking the opinion in the first place, I just think the result needs to be revisited."

O'Malley is not the only judge to have run into the problem of appearances and potential conflicts.

U.S. District Court Judge J. Frederick Motz, the former chief judge of the federal court in Baltimore, is married to Judge Diana G. Motz, who sits on the 4th U.S. Circuit Court of Appeals. Her court reviews decisions by the judges on her husband's court.

Mrs. Motz said she does not hear any appeals in which her husband played even the smallest role.

"I think that increasingly as you have more and more women in responsible positions there are going to be more and more situations like this," she said.

Patricia Pytash, a retired Baltimore County District judge, was appointed in 1982, and married a state trooper in 1985.

"Nobody ever challenged me," said Pytash, who still sits on the bench part time. "It gives me great concern they're challenging [O'Malley]. It's insulting her integrity as a judge. If at any time I feel I can't render a fair and impartial opinion, I disqualify myself."

Sun staff writer Jamie Stiehm contributed to this article.

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